United States v. Hill, Misc. No. 81-0197.

• Decision Date: 27 October 1981
• Docket Number: Misc. No. 81-0197.
• Citation: 525 F. Supp. 621
• Parties: The UNITED STATES of America, Petitioner, v. Andrew E. HILL and J. E. Pinkerton, Respondents.
• Court: U.S. District Court — District of Columbia

525 F. Supp. 621

The UNITED STATES of America, Petitioner, v. Andrew E. HILL and J. E. Pinkerton, Respondents.

Misc. No. 81-0197.

United States District Court, District of Columbia.

October 27, 1981.

Dayton Lehman, Sp. Asst. U. S. Atty., Washington, D. C., for petitioner.

John D. Taurman, Vinson & Elkins, Washington, D. C., for respondent.

MEMORANDUM OPINION AND ORDER

JOYCE HENS GREEN, District Judge.

Here before the Court is a petition to enforce Department of Energy (DOE) subpoenas directed to respondents Andrew E. Hill and J.E. Pinkerton, officers of Hill Petroleum Company, a Texas corporation engaged in the purchase and sale of gasoline and other petroleum products. Respondents were ordered by subpoenas issued May 11, 1981 to appear at DOE's Houston, Texas office to testify concerning the compliance of Hill Petroleum Company and Goldberg Refining, Ltd. with mandatory petroleum price and allocation regulations codified at 10 C.F.R. parts 205, 210, 211, and 212, with respect to "purchases, sales, exchanges and processing of crude oil and the purchase and sale of its sic refined product" over the period September, 1976 through September, 1977. Another DOE subpoena, which is the subject of a separate petition to enforce in United States v. Stoltz, 525 F.Supp. 617 (Memorandum Opinion filed this date), also brought before this Court, seeks testimony concerning another company's compliance with the same regulations with regard to the same type transactions in petroleum products over the same time period. Respondents requested that DOE review and quash the subpoenas, but this request was denied by DOE. DOE then instructed respondents that it would take their testimony on July 1, 1981. Respondents informed DOE that they would not appear on the scheduled date and have not done so since, prompting DOE to seek enforcement of the subpoenas through this Court. Respondents have moved to dismiss the petition and for discovery limited to the issue of the situs of the inquiry being carried on by DOE (a question relevant to the Court's subject matter jurisdiction; see discussion, infra).

In their motion to dismiss, respondents essentially have three arguments: first, that section 645 of the Department of Energy Organization Act of 1977 (DOEOA), 42 U.S.C. § 7255, does not confer subject matter jurisdiction on this Court, second, that in personam jurisdiction is lacking since this Court, it argues, lacks statutory authority to issue process extra-territorially in this case, and, third, that section 206 of the Economic Stabilization Act of 1970, 12 U.S.C. § 1904 note, and section 13(e)(2) of the Federal Energy Administration Act of 1974, 15 U.S.C. § 772(e)(2), also do not give this Court enforcement jurisdiction. Respondents, in their separate but identical requests to DOE for review of the subpoenas (attached to DOE's petition as exhibits C and D), also charge that the subpoenas are not reasonably defined and do not relate to a lawful purpose. Respondents also presented these arguments at the hearing. As the following discussion will demonstrate, it is clear that this Court does have enforcement jurisdiction over the subpoenas in question here and that the subpoenas are valid and enforceable.

Similar jurisdictional issues to those presented here were discussed in this Court's decision in United States v. Tesoro, 503 F.Supp. 868 (D.D.C.1980), and as such, that decision disposes of respondents' arguments concerning subject matter and in personam jurisdiction. The Court's subject matter jurisdiction over this case arises from section 645 of the DOEOA. Section 645 explicitly confers upon DOE the "same powers and authorities as the Federal Trade Commission under section 9 of the Federal Trade Commission Act with respect to all functions ...." 42 U.S.C. § 7255. Thus, DOE's powers include the authority to issue subpoenas "compelling attendance of witnesses, ... from any place in the United States, at any designated place of hearing." Federal Trade Commission Act (FTCA) § 9, 15 U.S.C. § 49. Section 9 further confers the power to enforce such subpoenas upon "any of the district courts of the United States within the jurisdiction of which such inquiry is carried on." Id.; see also, Tesoro, supra, at 870.

The "inquiry," respondents aver, is not being "carried on" in this district, since respondents reside in Texas, the subpoena was returnable in Texas, and their employer, the Hill Petroleum Company, is engaged in business in Louisiana and surrounding Southern states. A similar argument was advanced by the respondent in the companion case to this one, United States v. Stoltz, supra, and rejected. Despite the facts that in Stoltz, respondent also was a Texas resident, the subpoena likewise was returnable there, and that the corporation had its place of business in Texas, this Court found that the District of Columbia, was an appropriate forum, if perhaps not the only appropriate forum, because of the important investigative functions of DOE that took place in the District of Columbia. Stoltz, supra, Memorandum Opinion at 618-619. As noted in Stoltz, and as petitioner's affidavit sufficiently establishes¹ in the case here, the DOE's headquarters are located in this district, the officials ultimately responsible for enforcing the regulations are here, the control and direction of the investigations emanated from the District of Columbia, as did the decisions to issue the subpoenas and seek their enforcement. Affidavit of Jeffrey R. Whieldon (Exhibit 2 to Petitioner's Reply to Respondents' Opposition ... and Memorandum in Support of Petitioner's Opposition to Respondents' Motion to Dismiss and for Discovery); Stoltz, supra, Memorandum Opinion at 618-619. As such, the requirements of the rule that the activity under investigation must bear a reasonable relationship to the forum, set forth in Federal Trade Commission v. Mac Arthur, 532 F.2d 1135, 1140 (7th Cir. 1976) and followed in this Court's opinion in Tesoro, supra, are met in the instant case, and therefore the inquiry is one being "carried on" in this district for purposes of establishing jurisdiction.

In personam jurisdiction is lacking, respondents argue, because the Court does not have statutory authority to issue process extra-territorially in this case. This simply is not so. The United States Court of Appeals for the District of Columbia Circuit established in Federal Trade Commission v. Browning, 435 F.2d 96 (D.C.Cir. 1970), that a district court does have extra-territorial service of process power in subpoena enforcement activities under section 9 of the FTCA. See also, Federal Election Commission v. Committee...